Private placement transactions in the United States are covered by exceptions under the Securities Act of 1933. Offers are not subject to registration by the U.S. Securities and Exchange Commission and borrowers are not required to issue a prospectus or comply with extensive advertising obligations for public offerings. They are only open to accredited investors or other demanding investors, who generally include insurance, pension funds, hedge funds and high net worth individuals. The borrower then enters into bilateral government borrowing contracts with each investor. Businesses need to be aware that private placements often require more resources for investor relations, as changes or consents must be requested by each investor. However, bond purchase contracts often contain clauses providing for decisions made with majority investors similar to those of inter-creditor agreements. The private placement process begins with an information memorandum describing the borrower, his activities and financial situation and forwarded to potential investors, usually through an investment bank. European borrowers should seek external legal advice to ensure that private placement documents do not deviate from market practice and correspond to their existing lending facilities.
This exceptional regime is most often used by U.S. and European companies of all sizes who wish to make private placements in the United States. Although a public rating is not required by law, borrowers will often attempt to obtain a private rating from the Securities Valuation Office of the National Association of Insurance Commissioners, since insurance companies, one of the USPP`s main investor categories, can only invest in rated borrowers. Investors generally require insurance and guarantees similar to LMA loan contracts. Bond purchase contracts are sometimes covered by securities granted by the borrower and corporate guarantees from shareholders or other related companies. It is important that bond purchase contracts contain clauses and agreements similar to those of facility contracts. These offer investors greater structural protection than government bonds, as failure to default, coupon increases or additional fees for investors. Click here to see the full 2017 CMS Private Placement Guide Although Model X forms are subject to New York State law, another applicable law may be chosen by the parties and the USPPs have generally been regulated by English, French or German law.
Interested investors will then perform due diligence for the borrower, a process that is sometimes more important than that implemented by banks that offer credit facilities. USPP transactions are documented on the basis of Model X forms developed by the American College of Investment Counsel, which have become the market standard. There are different variations of the shape of Model X depending on whether the borrower is a U.S. borrower or not and the creditworthiness of the borrower.